The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
The Court is in receipt of a communication from Defendants' appellate counsel asking that this Court accept the return of the parties' trial exhibits for retention during the pendency of Defendants' appeal. For the following reasons, the parties are ordered to maintain possession of those exhibits.
First, pursuant to Federal Rule of Appellate Procedure 10(a), the record on appeal consists of, inter alia, "the original papers and exhibits filed in the district court."
Consistent with Eastern District Local Rule 39-138(3), none of the exhibits returned to the parties were "filed" in the district court. Rule 39-138(3) states, "Exhibits offered or admitted at trial will not be scanned or received electronically unless ordered by the Court." No Court order being had, those exhibits were not filed. Accordingly, they are not part of the record maintained by the Clerk of this Court.
Additionally, the parties stipulated to and the Court ordered that the above exhibits be returned to the respective parties. Indeed, the parties stipulated on the record to the return of the trial exhibits. Reporter's Transcript of Jury Trial, 17:25-18:15 (November 17, 2008). Furthermore, Defendants' trial counsel authorized the Court in writing (Docket No. 323) to release the defense exhibits to Defendants' appellate counsel, and appellate counsel accepted those exhibits, signing a receipt (Docket No. 324) acknowledging the same.
Finally, consistent with the practices of the Federal Circuit, if that court determines the original record is required, it will issue its own order requiring transmission. At that time, the parties, who maintain actual possession of their own trial exhibits, may submit those exhibits to the circuit court.
Accordingly, no exhibits are to be returned to this Court.
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